EAT; Griffiths J, [2022] EAT 42, 14 March 2022

The EAT ruled that a tribunal had applied the wrong approach to victimisation when it dismissed the claimant’s complaint against the respondent. The claimant complained that he had been denied appointment by the respondent because he had an outstanding disability discrimination claim against another police force. A tribunal rejected his claim on the grounds that (1) the refusal of that police force to provide information to the respondent had been a significant factor in its decision-making and (2) the claimant had not suffered detriment because the respondent had not excluded the possibility of appointing him after his claim against the other police force was determined.

The EAT ruled that the tribunal had failed to apply the correct legal approach to causation, which required it to determine the “reason why” the claimant was treated as he was. It had also failed to apply the correct approach to detriment as set out by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337: whether the treatment  complained of was of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment. As to the first of these, Griffiths J considered the authorities of Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425, Aziz v Trinity Street Taxis Ltd [1989] 1 QB 463, Chief Constable of West Yorkshire v Khan [2001] 1 WLR 1947, Martin v Devonshires Solicitors [2011] ICR 352, Woodhouse v West North West Homes Leeds Ltd [2013] IRLR 773 and Page v Lord Chancellor [2021] ICR 912 (§74). He ruled that the tribunal had erred in stating that it was required to look for the “operative or effective clause “of the treatment complained of and to make reference to the “entirely inapplicable concept of comparators”. It was unclear whether the fact that there were outstanding proceedings “had a significant influence” on the respondent’s refusal to appoint the claimant or whether the refusal by that other police force to provide information to the respondent was the only significant reason (§77). The case was remitted for hearing by a different tribunal.

Claimant: S Keen, instructed by Berry Smith LLP

Respondent: A Roberts, instructed by East Midlands Police Legal Services